Citation Nr: 0917160
Decision Date: 05/07/09 Archive Date: 05/12/09
DOCKET NO. 99-20 063A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for the cause of the
Veteran's death, to include dependency and indemnity
compensation (DIC) under 38 U.S.C.A. § 1151.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and son
ATTORNEY FOR THE BOARD
K.A. Kennerly, Counsel
INTRODUCTION
The Veteran served on active duty during World War II in the
United States Army from May 1942 to January 1946. He died in
August 1998; the appellant is the Veteran's surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1998 rating decision of
the Muskogee, Oklahoma, Regional Office (RO) of the
Department of Veterans Affairs (VA), which denied the
appellant's claim.
In November 2000, the Board remanded this claim to provide
the appellant with a Board hearing. The remand listed the
issues on appeal as entitlement to service connection for the
cause of the Veteran's death, entitlement to survivors and
dependent's educational assistance (DEA) benefits and
entitlement to accrued benefits.
The appellant and her son testified in July 2003 at a Board
videoconference hearing before the undersigned Veterans Law
Judge. A transcript of that hearing has been associated with
the Veteran's claims file. During the appellant's hearing,
the representative stated that the issues on appeal included
cause of the Veteran's death, entitlement to DEA benefits and
entitlement to accrued benefits. However, upon further
review of the claims file, the Board notes that the appellant
has never actually contested the denial of educational
benefits nor the denial of accrued benefits. She has never
argued the Veteran had a claim for VA benefits pending at the
time of his death, which is a prerequisite for an accrued
benefits claim. She has consistently limited her arguments,
both in her Substantive Appeal and at her Board hearing, to
entitlement to service connection for the cause of the
Veteran's death. For these reasons, the issue for appellate
review is limited to entitlement to service connection for
the cause of the Veteran's death.
In June 2005, the Board denied the appellant's claim. The
appellant subsequently submitted a notice of appeal to the
United States Court of Appeals for Veterans Claims (Court).
The Court issued a December 2007 Order vacating, in part, the
June 2005 Board decision and remanding the appeal for
readjudication consistent with the parties' Joint Motion for
Remand. The specifics of the Joint Motion will be discussed
below.
The Board notes that this case has been advanced on the
docket under 38 U.S.C.A. § 7107 (West 2002 & Supp. 2008) and
38 C.F.R. § 20.900(c) (2008).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required on her part.
REMAND
In substance, the parties to the Joint Motion noted that the
Board erred in its conclusion that the VA RO complied with
the duty to notify requirements of the Veterans Claims
Assistance Act of 2000. The parties agreed that while the
February 2001 notice letter informed the appellant of the
evidence needed to substantiate her claim for entitlement to
service connection for the cause of the Veteran's death, this
letter failed to inform her of the evidence needed to
substantiate her claim for DIC benefits under 38 U.S.C.A.
§ 1151.
It is well-established that in order to substantiate a claim
for DIC benefits filed on or after October 1, 1997, under
38 U.S.C.A. § 1151, the appellant must show additional
disability or death which was caused by VA hospital care,
medical or surgical treatment or examination; and that the
proximate cause of the disability was carelessness,
negligence, lack of proper skill, error in judgment or
similar instance of fault on VA's part in furnishing the
hospital care, medical or surgical treatment or examination;
and that the proximate cause of his death was an event which
was not reasonably foreseeable. See 38 U.S.C.A. § 1151
(a)(1)(A) and (B) (West 2002).
The Court also held that in the context of a claim for DIC
benefits, 38 U.S.C.A. § 5103(a) notice must include (1) a
statement of the conditions, if any, for which a veteran was
service connected at the time of his or death; (2) an
explanation of the evidence and information required to
substantiate a DIC claim based on a previously service-
connected condition; and (3) an explanation of the evidence
and information required to substantiate a DIC claim based on
a condition not yet service connected. See Hupp v.
Nicholson, 21 Vet. App. 342, 352-53 (2007).
Accordingly, the case is REMANDED for the following action:
1. The AMC should provide the appellant
with notice compliant with the
aforementioned requirements of
38 U.S.C.A. § 1151 (a)(1)(A) and (B)
(West 2002). She should also be
provided with a notice letter compliant
with the holding in Hupp v. Nicholson,
21 Vet. App. 342 (2007).
2. After completing the above action and
any other development as may be indicated
by any response received as a consequence
of the actions taken in the paragraph
above, the claim for the cause of the
Veteran's death should be readjudicated.
If the claim remains denied, a
supplemental statement of the case should
be provided to the appellant and her
representative. After they have had an
adequate opportunity to respond, this
issue should be returned to the Board for
further appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2008).
_________________________________________________
MICHELLE L. KANE
Chief Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. See
38 C.F.R. § 20.1100(b) (2008).